Hunter v. Stump, 17698.

• Decision Date: 21 January 1948
• Docket Number: No. 17698.,17698.
• Citation: 118 Ind.App. 84,76 N.E.2d 696
• Parties: HUNTER et al. v. STUMP et al.
• Court: Indiana Appellate Court

118 Ind.App. 84

76 N.E.2d 696

HUNTER et al.

v.STUMP et al.

No. 17698.

Appellate Court of Indiana, in Banc.

Jan. 21, 1948.

Appeal from Dearborn Circuit Court; Morris McManaman, Judge.

Action between Stanley E. Hunter and another and Floyd E. Stump and another. From and adverse judgment, Stanley E. Hunter and another appeal, and Floyd E. Stump and another move to dismiss the appeal.

Motion to dismiss appeal overruled and judgment affirmed.W. M. Turner, of Lawrenceburg, for appellants.

Charles A. Lowe, of Lawrenceburg, for appellees.

DRAPER, Chief Judge.

The appellees have filed a motion to dismiss this appeal on the ground that a decision of the questions presented by appellants' assignment of error requires a consideration of the evidence, and that the evidence is not in the record; and further because the appellants have failed to make the marginal notations required by Rule 2-5.

An examination of the record discloses an entry showing the filing of a bill of exceptions on September 19, 1947. This is followed on the next page of the record by the certificate of the clerk dated the same day which reads as follows: ‘I, Chester E. Guard, Clerk of the Dearborn Circuit Court of Dearborn County, State of Indiana, do hereby certify that the above and foregoing transcript contains a full, true and complete transcript of the entire record, entries made, papers filed and proceedings had in said cause required by the above and foregoing praecipe.’

Following the certificate of the clerk appears a transcript of the evidence, and following that appears the certificate of the judge which is also dated September 19, 1947, which certifies that the longhand manuscript incorporated in the bill of exceptions is full, true and complete, and contains all of the evidence given in the cause, etc., and which recites that the bill of exceptions is approved, signed, sealed and filed in the cause as a bill of exceptions containing all of the evidence given in the cause, etc., and recites that the bill of exceptions is to be and constitute a part of the record and which orders the clerk to file the same as a part of the record in said cause and to certify said original bill of exceptions.

It has frequently been held that where the sole error assigned requires a consideration of the evidence, no question is presented to this court unless the evidence is properly before us. In this case the clerk has certified ‘that the above and foregoing transcript contains * * * (the) papers filed * * * in said cause’. (Our emphasis) The bill of exceptions containing the evidence, including the judge's certificate as a part thereof, follows and does not precede this certificate. It bears no file mark of any kind, and nowhere and in no manner is it identified as a bill of exceptions filed in the case. By his certificate the clerk not only does not certify the bill of exceptions as a paper filed in the cause, but he in effect certifies that it was not so filed, for it is not included in the transcript which precedes his certificate, and which he asserts includes the papers filed in the...